Graves, D. v. Graves, M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DARLENA GRAVES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MIA M. GRAVES EUGENE D. :
WATSON :
: No. 203 EDA 2022
:
APPEAL OF: MIA M. GRAVES
Appeal from the Order Entered January 4, 2022
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): XC0804474
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 30, 2022
Mia M. Graves (“Mother”), pro se, appeals from the order granting her
co-defendant, Eugene Watson (“Father”),1 sole physical and legal custody of
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* Retired Senior Judge assigned to the Superior Court.
1 Although this appeal involves a custody action, we will use the parties’ names
in the caption “as they appeared on the record of the trial court at the time
the appeal was taken.” Pa.R.A.P. 904(b)(1). Notably, “upon application of a
party and for cause shown, an appellate court may exercise its discretion to
use the initials of the parties in the caption based upon the sensitive nature
of the facts included in the case record and the best interest of the child.”
Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907(a). Neither party has applied to
this Court for the use of initials in the caption. We will, however, refer to the
minor involved in this custody dispute by his initials or as “Child” to protect
his identity.
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their son, A.G. (“Child”). We affirm.
Child was born in January 2008. Since his birth, Child primarily lived
with Mother in Philadelphia, Pennsylvania. Maternal Grandmother, Darlena
Graves, also lives in Philadelphia while Father lives in Middletown, Delaware.
In October 2009, the trial court entered a temporary custody order granting
Mother custody of Child without prejudice to Father, who was facing criminal
charges at that time. However, the trial court did not enter a final custody
order regarding Child.
On April 29, 2019, Maternal Grandmother filed a custody complaint,
seeking primary physical and shared legal custody of Child, and named Mother
and Father as defendants. Subsequently, Mother filed a complaint, seeking
sole physical and legal custody of Child, and naming Maternal Grandmother
as the sole defendant. At this time, Father did not file a petition for custody
and the trial court did not join him as a necessary party to the complaints.
After the parties could not agree on a plan for custody, the matter was
scheduled for a hearing before the trial court.
At the hearing, Maternal Grandmother indicated that Child was living
with Father and that she sought to change her request from primary physical
custody to visitation. Maternal Grandmother indicated that since the last court
date, Child ran away from home on two occasions and that he was living with
Father.
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Mother responded that Maternal Grandmother undermined her
relationship with Child, including coaching Child to leave Mother’s home and
taking Child to Father’s home in Delaware. Mother also indicated that Child
has severe medical issues, including asthma, and Father was not an
appropriate parent.
Following the hearing, the trial court entered an order granting Father
sole legal and primary physical custody of Child and Mother partial, supervised
physical custody of Child every second, third, and fourth weekend of every
month with a person agreed to by Maternal Grandmother’s counsel. The trial
court also granted Maternal Grandmother visitation as mutually arranged and
agreed by Maternal Grandmother, Father, and Child.
This Court reversed the trial court’s order in a published opinion. See
Graves v. Graves, 265 A.3d 688 (Pa. Super. 2021). Specifically, the Court
concluded that the trial court erred in granting sole physical and legal custody
of Child to Father, because Father never had custody of Child, was never
joined as a party to the litigation, and did not formally seek custody by petition
or counterclaim; the Court noted that only Mother and Grandmother sought
custody of Child. See id. at 702. To that end, this Court found that because
Father was improperly granted custody of Child, the visitation portion of the
order was also improper. See id. at 702-03. Moreover, this Court found that
the trial court failed to properly consider all the factors necessary for custody
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and relocation of a child under 23 Pa.C.S.A. §§ 5328(a) and 5537(h).2 See
id. at 700-02. Accordingly, this Court directed the trial court to join Father as
a party; inform Father that he could file an objection to joinder and file a
counterclaim asserting custody of Child; and that if Father did not seek
custody, the trial court must rule only upon the petitions filed by Mother and
Maternal Grandmother. See id. at 703.
In the interim, on September 22, 2021,3 Father filed a complaint for
custody of Child, seeking sole legal and physical custody. Subsequently, the
trial court reinstated the complaints for custody filed by Mother and
Grandmother. The trial court held a custody hearing on January 4, 2022, at
which, inter alia, the trial court confirmed that Father was a party to the action,
and that Maternal Grandmother, who was not seeking custody, was excused
from the proceeding. Further, Child testified that Mother had abused him and
that there was a continuing risk of abuse; Father was better for his daily,
physical, emotional, developmental, and educational needs; and that he
wanted to live with Father. Following the hearing, the trial court entered an
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2 As noted below, the Graves Court highlighted that where neither parent is
seeking to relocate and only the child would be moving, Section 5537 is not
triggered; rather any relocation factor not already incorporated by the court’s
consideration of the relevant custody factors may be addressed under Section
5328(a)(16). See Graves, 265 A.3d at 702 (citing D.K. v. S.P.K., 102 A.3d
467, 477 (Pa. Super. 2014)).
3This Court initially published its Graves opinion on September 17, 2021.
However, the court later withdrew the opinion and refiled it on October 18,
2021.
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order, granting Father sole legal and physical custody of Child. The trial court
further provided that Mother and Maternal Grandmother had visitation rights
to be arranged and agreed to by Father.
Mother filed a timely notice of appeal,4 and a Pa.R.A.P. 1925(b) concise
statement.5
In a disjointed brief,6 Mother reasserts various claims from the hearing
on the custody petitions that we will address together. More specifically,
Mother argues that the trial judge retaliated against her based upon her
complaints of sexual harassment against the master in the case, and was
biased, which impacted the assessment of the factual findings and credibility
of the witnesses. See Mother’s Brief at 1, 5, 28, 30. Mother further claims that
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4 After filing the appeal, Mother filed a pro se motion seeking the recusal of
the trial court judge. On February 28, 2022, the trial court judge granted the
motion and directed that another judge be appointed to the case.
5We note that Mother failed to file her concise statement contemporaneously
with her notice of appeal. See Pa.R.A.P. 1925(a)(2)(i) (providing that, in
Children’s Fast Track appeals, a Rule 1925(b) statement “shall be filed and
served with the notice of appeal.”); see also Pa.R.A.P. 905(a)(2) (same).
Accordingly, this Court issued an order directing Mother to comply with Rule
1925(a)(2)(i) and (b). Mother complied with this Court’s order; accordingly,
we decline to find that her issues are waived.
6 Mother’s pro se brief does not conform to the basic requirements set forth
in Pa.R.A.P. 2111(a), including failing to include (1) a statement of
jurisdiction, (2) the order in question, (3) a statement of the questions
involved, (4) a summary of the argument, or (5) a distinct argument section.
See Pa.R.A.P. 2111(a). Nevertheless, although a pro se appellant is not
entitled to special treatment, we can discern Mother’s legal issues from her
brief and will address them on appeal.
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in granting Father sole legal and physical custody, the trial judge misapplied
the factors at 23 Pa.C.S.A. § 5328, diminished Mother’s character while
supporting Father’s character, and failed to allow Mother to submit supporting
documentation at the hearing. See id. at 1, 3-4, 29-30.7 Mother further
contends that the trial judge allowed Child to move 60 miles from her home
without assessing Child’s relationships with his siblings. See id. at 28. Mother
concludes that the trial judge did not show that there was clear and convincing
evidence it was in Child’s best interest to live with Father, and his order that
Mother can have custodial times as arranged by Father was clearly meant to
deprive her of seeing Child. See id. at 29-30.
Mother claims that Maternal Grandmother sought custody of Child to
punish Mother for not fostering a relationship with Maternal Grandmother. See
id. at 2, 27-28. Mother argues that Maternal Grandmother made a false report
that abuse was present in Mother’s home; kidnapped Child; hid Child while
police investigated Child’s whereabouts; and devised a plan with Father to
have Child transported to Father’s home in Delaware. See id. Mother also
contends that Maternal Grandmother has no standing to pursue custody. See
id. at 27.
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7 Importantly, Mother does not raise any claims challenging the relevant
relocation factors at Section 5537(h); thus, we find any such challenge waived
on appeal.
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Finally, Mother maintains that Father should not have custody of Child,
noting that Father had no contact with Child and did not know Child’s medical
history. See id. at 4. Mother additionally asserts that the trial court had no
knowledge of Father’s living arrangements, Father’s financial ability to take
care of Child and meet his medical needs, or the backgrounds of people in
Father’s home. See id. at 3, 4, 28; see also Addendum to Brief, 9/9/22, at
2; Addendum to Brief, 9/6/22, at 5. Further, Mother claims that Child’s two
siblings have had a difficult time since Child left her home. See Mother’s Brief
at 4; see also Addendum to Brief, 9/9/22, at 2. Mother also contends that
Father has a lengthy criminal record, including embezzling money and selling
drugs, and has been committing fraud on the court in this case for 14 years.
See Mother’s Brief at 3, 28. Moreover, Mother asserts that Father has evaded
paying child support and has turned Child against Mother, by coaching him
and denying him visits and communication with Mother, in retaliation for being
arrested multiple times for failing to pay child support. See id.; see also
Addendum to Brief, 9/9/22, at 2. Likewise, Mother argues that Father has
prevented her from contacting Child and has used court proceedings and social
media to emotionally abuse her. See Mother’s Brief at 2-3, 28; see also
Addendum to Brief, 9/9/22, at 2; Addendum to Brief, 9/6/22, at 5.8
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8 Mother also raises claims regarding a support order, arrears she believes
should be removed from her credit report, and a tax lien she believes should
be lifted. See Mother’s Brief at 31. However, such claims are not related to
(Footnote Continued Next Page)
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Our standard of review is deferential:
We review a trial court’s determination in a custody case for
an abuse of discretion, and our scope of review is broad. Because
we cannot make independent factual determinations, we must
accept the findings of the trial court that are supported by the
evidence. We defer to the trial judge regarding credibility and the
weight of the evidence. The trial judge’s deductions or inferences
from its factual findings, however, do not bind this Court. We may
reject the trial court’s conclusions only if they involve an error of
law or are unreasonable in light of its factual findings.
C.A.J. v. D.S.M., 136 A.3d 504, 506 (Pa. Super. 2016) (citation omitted).
“With any child custody case, the paramount concern is the best
interests of the child.” M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013)
(citation omitted). “This standard requires a case-by-case assessment of all
the factors that may legitimately affect the physical, intellectual, moral and
spiritual well-being of the child.” Id. (citation omitted).
The Custody Act provides a non-exhaustive list of the 16 factors a court
is required to consider to determine the best interests of the child as follows:
§ 5328. Factors to consider when awarding custody
(a) Factors. - In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member
of the party’s household, whether there is a continued risk of harm
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the order at issue in this case. Accordingly, we will not address Mother’s claims
in this regard.
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to the child or an abused party and which party can better provide
adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to
consideration of child abuse and involvement with protective
services).
(3) The parental duties performed by each party on behalf of the
child.
(4) The need for stability and continuity in the child's education,
family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s
maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make
appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A party’s
effort to protect a child from abuse by another party is not
evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of
a party’s household.
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(15) The mental and physical condition of a party or member of a
party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
Moreover, as noted above, the trial court is not required to conduct a
separate, distinct consideration of the relocation factors because neither
parent is relocating and only Child would be moving. See D.K., 102 A.3d at
477 (stating that “a custody case where neither parent is seeking to relocate
and only the children would be moving to a significantly distant location if
custody shifted from one parent to another does not per se trigger section
5337 of the Child Custody Act.”). Instead, any relevant relocation factor not
already incorporated by the court’s consideration of the custody factors may
be addressed under Section 5328(a)(16). See id.Additionally, in any custody action, the trial court must “delineate the
reasons for its decision on the record in open court or in a written opinion or
order.” 23 Pa.C.S.A. § 5323(d). However, “[i]n expressing the reasons for its
decision, there is no required amount of detail for the trial court’s explanation;
all that is required is that the enumerated factors are considered and that the
custody decision is based on those considerations.” A.V. v. S.T., 87 A.3d 818,
823 (Pa. Super. 2014) (citation and quotation marks omitted).
Here, the trial court addressed each of the factors set forth at Sections
5328(a) in its custody opinion, as required by Section 5323(d). See Trial Court
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Opinion, 3/3/22, at 11-19 (addressing the factors set forth at Section
5328(a)); see also N.T., 1/4/22, at 21-66. In discussing each factor at
Section 5328(a), the trial court found seven factors favor Father (1, 2, 7, 9,
10, 11, 13), and the remaining nine factors were neutral and did not favor
either party (3, 4, 5, 6, 8, 12, 14, 15). See Trial Court Opinion, 3/3/22, at 11-
19. Additionally, the trial court found that Father’s relationship with Child was
enhancing and improving his life; Child was flourishing in school in Delaware;
and Child and Father would promote and preserve contact with Mother and
Child. See Trial Court Opinion, 3/3/22, at 12-15; see also D.K., 102 A.3d at
477 (noting that the trial court would still need to consider the age and needs
of the child and the impact of the child’s change of residence on the his/her
physical, educational and emotional development — 23 Pa.C.S.A.
§ 5337(h)(2)), preserving the relationship between the other parent and the
child — Section 5337(h)(3)), and whether the change in the child’s home will
enhance the general quality of his/her life — Section 5337(h)(7)). Accordingly,
the trial court weighed all the factors and found that it was in Child’s best
interests to grant sole legal and physical custody to Father in Delaware. See
Trial Court Opinion, 3/3/22, at 19; N.T., 1/4/22, at 66.
Although the trial judge recused after the instant appeal was filed,
Mother’s claims of bias and retaliation do not establish that the trial court
improperly weighed the factors articulated in Sections 5328(a). Indeed, the
trial court considered all the evidence and testimony of the parties and
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determined the credibility of the witnesses and assessed the weight of their
testimony. See id. at 7, 8; see also id. at 12-13 (wherein the trial court
noted that Mother argued that she was in possession of a letter from the
Department of Human Services that purported to establish that Maternal
Grandmother lied about the abuse in Mother’s home but failed to present the
letter at trial). Additionally, the trial court heard testimony regarding Father’s
financial ability to care for Child and meet Child’s medical needs, considered
Father’s prior criminal history, Father’s testimony that he would enable
communication between Mother and Child, and Child’s relationships with his
siblings. See id. at 9, 11-19; see also N.T., 1/4/22, at 11, 13, 22, 27-31, 34,
36-37, 40, 48-50, 52-53, 57, 63-64. Further, Child testified that he preferred
to live with Father. See Trial Court Opinion, 3/3/22, at 15; see also N.T.,
1/4/22, at 62-64.
In essence, Mother is asking us to both reject the trial court’s findings
and credibility determinations in favor of the factual findings and credibility
determinations that she proposes and reweigh the evidence. We decline
Mother’s invitation to do so, because we cannot reweigh the evidence and
“[w]e must accept findings of the trial court that are supported by competent
evidence of record, as our role does not include making independent factual
determinations.” M.J.M., 63 A.3d at 337 (citation omitted). In conclusion, the
trial court’s findings and determinations are supported by competent record
evidence, and we will not disturb them.
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Furthermore, regarding Mother’s standing claim against Maternal
Grandmother, the trial court specifically found that Maternal Grandmother was
excused prior to the beginning of the testimony and was therefore not a
participant in this matter, as she was not seeking custody. See N.T., 1/4/22,
at 18-19; see also Trial Court Opinion, 3/3/22, at 8. To the extent Mother
argues that the trial court abused its discretion in granting visitation to
Maternal Grandmother, we conclude that this claim is without merit. Indeed,
the trial court specifically found that Child sought comfort and refuge with
Maternal Grandmother, and she acted in his best interests. See id. at 10.
Based upon the foregoing, the trial court properly weighed the statutory
custody factors and clearly articulated its considerations in making the custody
award. The evidence of record supports the trial court’s decision, and we do
not find that its judgment was manifestly unreasonable or the product of
partiality, prejudice, bias, or ill will. Accordingly, we find no error or abuse of
discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2022
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